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How Constitutional Drafters Use Comparative Evidence

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Svitlana Chernykh discusses the transcripts of constitutional deliberations in two settings of third-wave democratization, Brazil and Ukraine.

Image courtesy of interviewee. February 12, 2024

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This video video is a transcript from a presentation focused on a co-authored study about diffusion in the context of constitutional reforms, conducted by the speaker and Zach Elkins from the University of Texas at Austin. The study aims to explore how constitutional drafters reference foreign models and experiences during deliberations for new constitutions. The authors seek to answer three main questions: whether these drafters refer to foreign constitutional models, how they do so, and which specific countries or models are referenced.

The study highlights the significance of foreign references during the constitutional debates in two key cases: Brazil (1987-1988) and Ukraine (1991-1996). Findings reveal that these references were frequent and central to discussions, often occurring as frequently as mentions of democracy and freedom. Both countries predominantly referenced nations like the US, UK, Canada, and France, even though some specific mentions varied (e.g., Brazil mentioning Portugal and Ukraine referencing Russia).

The research methodology involved analyzing transcripts of constitutional deliberations to identify and categorize foreign references, examining their context, the perceived motives of the speakers, and the nature of the references (whether they advocated for or warned against adopting foreign models). The results showed a balance between positive endorsements and warnings against certain models.

Overall, the study offers insights into the mechanisms of how foreign models influence constitutional development, countering the notion that such adaptations are merely mechanical. It underscores that constitutional drafters conduct thorough evaluations and discussions regarding foreign experiences before incorporating them into new constitutional frameworks. This video video nuanced understanding provides a more detailed view of the diffusion processes involved in constitutional reform.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Let begin with saying that this is a co-authored work

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with Zach Elkins, professor

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of University of Texas at Austin.

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And in this, article we study diffusion.

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So diffusion is a general phenomena of interdependence,

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which includes a host of complementary

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and sometimes competing mechanisms.

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In order to identify the mechanisms,

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analysts can make an inference based on the kinds

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of countries and networks that are most influential.

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So a bit of a context for this particular study,

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the motivating reasons for scholars

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of diffusion is the observation that adoption

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of a particular reform such as, let's say, abolition

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of slavery or decolonization

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or more recently transition to democracy

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is clustered temporarily and spatially.

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So the most popular example is the third wave of democracy

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where scholars observe

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that multiple countries have started their transitions

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to democracy, not only around the same time,

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but also it happened with countries

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that were located closely to each other, right?

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So in this article, we are interested

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to study diffusion processes in the context

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of constitutional reforms.

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And we have three main questions we want to answer.

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So the first one is, do constitution drafters refer, refer

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to foreign models

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and experiences during constitutional deliberation.

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So when they're sitting down

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and discussing, you know,

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what the new constitution will look like, as I mentioning,

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any countries outside of the countries

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that they're actually drafting the constitution for.

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If they do, how do they do it? Right?

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And the final question is, which countries?

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So which models of foreign experience are they referring to?

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Is it neighboring countries?

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Is it countries that are high income developing countries

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or developed countries?

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Is it countries with similar

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cultural linguistic or colonial types?

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So these are the three questions that we want

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to answer in this article.

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In my opinion, one of the most influential studies on,

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in the field of theories of diffusion is, the study

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by Zach Elkins, the Elkins, who is co-authoring this work

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with me and Beth Simmons and their article 2005 article.

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In this article, they counted,

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they focused on identifying distinct mechanism of diffusion.

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How does diffusion happen, right?

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And they identify, 27 distinct mechanisms of diffusion.

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Now, frequently the an the analysis are conducted at the

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country or the aggregate level.

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For instance, if a country imitates those nations on which

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it depends, before an aid, for instance,

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one may conclude that there's a pressure on these leaders

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to conform, right?

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If a country imitates the experience

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of economic competitors, one main reason

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that perhaps competition plays a large role,

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however, to track the diffusion mechanism

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At play and their causal impact investigation

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of individuals involved in the reform is very helpful

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to collaborate the state level inferences, right?

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And sometimes to really pin down the actual processes

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of weather and how ideas,

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or in this case, reforms are diffused, right?

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And this is what we do in this work, right?

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So we are relying to the building on Elkin

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and Siemens trying to define that

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to really track down the mechanisms.

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And we are doing it by focusing on the actors on the ground.

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We're not the first ones, right?

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So we are also building on a number of what,

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who have done this before.

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For instance, Whitney, Wesley in 1987,

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documented an intensive review of foreign models

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of government structures

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that the post maji government pursued in Japan.

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Similarly, one of the most, famous scholars

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of democratization democracy in Latin America occurred

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Wayland in his 2004 book, really traced down the cases

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of transfer and influence among Latin American countries.

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So in this work, we rely on this, existing literature

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and we build on it.

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Uh, and we are looking at the processis

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of diffusion in the constitutional deliberation.

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And we have, two cases.

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We, we, it's a comparative study from two different regions.

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So what we do, we started with, trying to find,

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a record of constitutional deliberation.

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And we were quite lucky to find a complete record

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of constitutional deliberation

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during the constitutional drafting in Brazil, 19 87, 19 88,

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and the constitutional drafting of Ukraine,

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which spent five years, 1991 to 19 95, 9 96.

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So once we found the transcripts, a full complete record

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of constitutional deliberation, we read the transcripts

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and we try to identify each

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and every reference to a foreign country

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or a set of countries in these transcripts

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for each reference.

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We also recorded a number of variables.

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Uh, we wanted to record,

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the identity of the reference country.

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So which particular country is reference as well

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as the purpose of the reference, the re as the context

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or the topic of the reference.

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So here, think about the constitution

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and different sections that constitutions have.

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So usually we would see does this reference refers in the

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context of talking about executive

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and legislative relations,

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or is it talking about the judiciary?

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Is it talking about the section of, you know, human rights?

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Is it talking about, sections of election, right?

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So we tried to figure out which topic it would refer to.

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We also looked and tried to code the perceived motives

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of the speaker, the tone and the reaction.

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So for instance, we wanted to see if this speaker is,

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trying to advocate for an endorsement of this model

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or similar model, right?

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So having sort of a positive tone in thinking

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that this particular foreign model, might be appropriate

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for the country in question here, right?

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Or on the other hand, we would code if the speakers,

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what we call is a warning, they saying, you know,

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we shouldn't adapt this particular model

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because perhaps it didn't work in a particular case.

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And they're referencing a country in that respect.

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So really coding the references,

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but also the context around them.

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So really try to understand

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not only whether the countries are references,

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but in what way as a reference,

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and what does the motivation of the speaker,

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what does the motivating reasons for the speaker

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to really talk about the country?

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And how extensively are it really talking about

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this particular reference?

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Is it just, you know, a fleeting reference?

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You know, is it the reference to, you know, a number

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of countries in particular region,

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or is it an in-depth reference really

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analyzing the model, right?

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And this was something that was very, very important to us.

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So once we had a complete data set for, Brazil

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and Ukraine, we were able to analyze

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and really answer our questions here.

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So I think the easiest way for me

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to talk about the results is really go back

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to our questions, right?

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So we had three main questions we were asking in this study,

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do constitution drafters refer to foreign models

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and experiences during constitutional deliberation?

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And the short answer is yes.

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And extensively, we found the delegates in both countries

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that we analyze, Brazil

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and Ukraine frequently referenced foreign

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models in their speeches.

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Now, to give an idea of the magnitude of

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how frequently the reference, these countries,

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we can compare these references, to,

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other important terms.

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For instance, you know, do they mention foreign,

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experiences in,

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and countries, as frequently

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as they mentioned the word democracy, for instance,

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or as frequently and the most mentioned the word, you know,

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freedom, right?

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And we find that it is as frequent, right?

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So in Ukraine, the references, the frequency of references

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to foreign countries is actually more than references

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to the, you know, to the word democracy or democratic

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or to the word freedom, right?

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In Brazil, it's almost as frequent as to these terms, right?

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So what we find is that first sort of finding

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and conclusion is that foreign references were central

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to the constitutional debates in both countries, right?

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So this is our sort of answer to our first question.

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They have been central,

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and now we moving to a se second question

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to really understand how do the constitutional drafters

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refer to these foreign, experiences, right?

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And here, as I mentioned previously,

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we're looking at the motives and the context, okay?

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So we're looking as a, you know, advocating endorsement

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as advocating avoidance, you know, what is the tone

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of the references and how in depth they are.

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We find that in both countries, the majority

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of the references contained at least a regimen,

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rudimentary element of

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Comparative constitutional analysis

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in which speakers suggest a particular foreign country was a

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target for, is a model to follow sort of

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what we call endorsement

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or to avoid sort of call a warning, right?

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So they weren't just referred to, in,

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in fleeting discussions, they were really analyzed in depth.

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Um, when we think about endorsements, when the speakers sort

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of advocated a model to emulate, you know,

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they frequently refer to, you know, development

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or institution or the level of democracy

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or similarity between their country

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and the reference country, right?

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For the warnings, it was a similar sort of set

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of context, right?

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Um, they again refer to the development institutions

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in this case, you know, low level of democratization

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or authoritarianism,

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and the differences between their country

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and the countries that they're reference to.

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What we find is that,

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there are more references talking about the emulation.

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So they were really focusing on which models can they really

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borrow and trying to understand, you know, and explain

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and sort of advocate why they should be borrowed.

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Um, but there are also a sizable number

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of negative references

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or sort of, warnings saying, you know,

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this particular institution did not work

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in the reference countries.

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This is why we should be staying away from it.

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And we find this very, very interesting.

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Now, our third question was about, you know,

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which models are referenced?

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Um, is it neighbors?

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Is it high income countries, countries with similar cultural

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or linguistic or colonial ties?

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Which countries are important for constitutional designers?

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Even though we are working with quite different countries,

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which is Ukraine and Brazil, we found that they,

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in these two countries during the constitutional debates,

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the constitutional drafters refer to the same set

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of countries, right?

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They refer to the US, Canada, United Kingdom,

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and France very frequently, right?

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So these countries that were absolutely prominent in

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discussion, in both cases,

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we do find some differences as well, right?

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So there are some countries

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that mentioned only in one context or the other.

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So Brazil, you know, was frequently mentioning Portugal.

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Ukraine was mentioning Russia, right?

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But what we really find that

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two different societies in the midst of reconstruction

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of their political order drew insights

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from mostly the same countries, right?

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And especially US has been quite influential, right?

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And when we think about, you know, can we develop a model

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that would, predict which countries would actually,

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you know, dominate the discussion

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of constitutional drafters, right?

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And if we develop such a model, which we do in our paper,

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we find that,

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there are particular things that are important.

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So the size of the economy,

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so we're talking here about the GDP

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and the countries, with high,

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human development index.

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So these are the countries that are, you know, quite sort of

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habited by the constitutional doctors they use, you know,

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in quite, quite a lot.

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So, what matters is the economy.

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What matters is the human development index.

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You know, they're not paying attention to other things.

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Like for instance, you know, population, obviously Brazil

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and Ukraine, you know, these are two episodes

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of constitutional reforms.

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So when we were picking cases for this study, we wanted to,

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balance the similarities and the contrast.

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So we wanted cases similar enough to be amenable

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to comparison, but different enough

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to test whether insights from one setting,

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are consistent with the those from another.

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So let's talk about the similarities

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between these two countries, right?

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Both cases, of transition to democracy,

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both happening, in the same time, right?

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So Brazil, 1987, Ukraine is, 1991.

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So just three to four years apart.

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Um, in both cases,

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these are new constitution directors, right?

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So actors involved, took the opportunity

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to engage in a very comprehensive constitutional reform.

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Let's talk about the differences.

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Um, the processes were a bit different.

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So Brazil had a constitution, constitu assembly, right?

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So the whole sort of a side of the department was involved,

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and there was an intended debate, you know, happening

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between the 87, 88 Ukraine had the structure

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of the constitutional commission.

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At the same time, Ukraine was sort of, you know, becoming,

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this was an independence in 1991.

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So in addition to drafting a new constitution, it was sort

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of going through the sort of new birth

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of the state in a way, right?

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So, you know, regaining independence, you know,

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there's other issues associated with these processes

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that made the constitutional drafting

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process a bit longer, right?

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It wasn't as condensed, right?

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They couldn't meet as frequently.

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So it spans sort of a couple years with interruptions

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for different things that were happening.

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What's interesting is that both constitutions,

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the Brazilian one and the Ukrainian one surpassed,

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their life expectancy in this stage.

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So the life expectancy

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of a constitution worldwide is 19 years.

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We expect the Constitution on average to die after 19 years.

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Now, both of these constitutions are still alive.

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They have been amended, but they're still alive.

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Uh, so at this point, they have surpassed the 19 years,

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of life expectancy worldwide as I started, right?

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I was talking about the diffusion

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processes and how they're studied.

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And in many analysis,

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the diffusion process are studied at the country level

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or sort of an aggregate level, right?

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And our work has shown a more detailed process of diffusion.

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We are looking at the actors and the actual mechanism of how

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Possibly, right, these foreign models are actually making

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their way into constitution

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and tracing the process on the ground, as opposed

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to just comparing the constitution

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and saying, this one is similar.

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So we will assume that they borrowed it from a constitution.

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So, I think our work is providing sort of a more

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nuanced view, right?

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And, a way to really track down the mechanism

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of diffusion a bit more closely by looking at the actors.

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Now, the second contribution,

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we learned which characteristics are important, right?

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So which countries are actually making,

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or which foreign models are making their way into, you know,

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constitutions of different countries, right?

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So we, what is important?

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So for instance, countries level

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of development is much more important

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than its population, right?

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So countries really looking, they are looking at,

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you know, similarities, but they are really looking at

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how successful other models are, trying to understand why,

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and then see, you know, if

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that will work in their context, right?

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Which is, I find it extremely useful and interesting.

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Um, and finally,

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I think one particular insight from our work has to do

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with the style and the approach to foreign models.

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So there's some accounts of institutional adaptation, right?

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Or institutional adaption,

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and they tend to suggest that institutions are sort

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of picked off the shelf

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and you know, in a rather automatic fashion

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and sort of, you know, taken and adapted.

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But if we, look at the Brazilian example

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and the Ukrainian example, foreign models go through,

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a very sorrow evaluation, right?

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They are looked at closely, they're analyzed,

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they are discussed,

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and you know, even if they are sort of accepted,

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they are still modified before they get into, you know,

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before they make their way into constitutional context.

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So it's more a nuance process, right?

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It's not just picked up what's working

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there, and we just put it here.

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They've really looked closely,

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the constitutional directors in this particular two cases

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really done their work, in many cases, studying

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and doing research, you know,

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before bringing it up during the debates, you know,

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and really sort of supporting their arguments

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and really sort of investigating the impact of these models.

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How would they fit? And not only then perhaps they make it

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into Constitution, if they do,

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and I think this is sort of an advancement on the, you know,

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what we've knew so far.

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